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[2007] ZASCA 46
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S v Scott-Crossley (100/07) [2007] ZASCA 46; 2007 (2) SACR 470 (SCA) (29 March 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 100/07
In the matter between:
MARK SCOTT-CROSSLEY
......................
Appellant
and
THE STATE
......................
Respondent
_____________________________________________________
Coram
:
Farlam JA, Hancke et Musi AJJA
Date of
hearing:
23 March 2007
Date of
delivery:
29 March 2007
Summary
: Bail ─
pending appeal ─accused granted leave to appeal ─ effect
of ─ mere fact that sentenced person granted
leave to appeal
not constituting exceptional circumstance ─ court will take
into account that the accused has no prospect of
avoiding a custodial
sentence ─ accused’s personal circumstances commonplace
and not out of the ordinary ─ accused
has not discharged the
onus of establishing ‘exceptional circumstances’ as
contemplated in
s 60(11)(a)
of the
Criminal Procedure Act 51 of 1977
.
Neutral citation:
This
judgment may be referred to as
Scott-Crossley
v The State
[2007] SCA 46 (RSA).
_____________________________________________________
JUDGMENT
_____________________________________________________
HANCKE AJA
HANCKE AJA:
[1] The appellant was convicted of the murder of Simon
Chisale and sentenced to life imprisonment. He unsuccessfully applied
for leave
to appeal from the trial court. Leave was, however,
subsequently granted by the Supreme Court of Appeal. As a consequence
thereof
the appellant brought an application for bail pending the
outcome of his appeal. This too was dismissed. He now appeals as of
right
to this court to be released on bail.
[2] The appellant was convicted of a planned or
premeditated murder as defined in
part 1
of Schedule 2 read with
s
51(1)(a)
of Act 105 of 1997 which prescribes a minimum sentence of
life imprisonment. According to
s 60(11)(a)
of the
Criminal Procedure
Act, Act
51 of 1977, an accused is to be detained in custody when
charged with an offence referred to in Schedule 6, unless he adduces
evidence
to the satisfaction of a court that ‘exceptional
circumstances exist which in the interests of justice permit his or
her release.’
[3] In
S v Bruintjies
2003 (2) SACR 575
(SCA) this court held (at para 5) that
a person who has been found guilty of a Schedule 6 offence and been
sentenced cannot claim
the benefit of a lighter test than that
imposed in the case of unconvicted persons by
s 60(11).
[4] It is thus clear that the appellant bore the onus to
persuade this court that exceptional circumstances exist which in the
interest
of justice permit his release on bail.
[5] To discharge the onus the appellant gave no
viva
voce
evidence but relied on affidavits
deposed to by himself, his wife and his attorney. It appears
therefrom that the most important factor
relied upon is the fact that
the Supreme Court of Appeal has granted leave to appeal against his
conviction. It is the appellant’s
case that he therefore has
reasonable prospects of success which, in cases not covered by
s
60(11)
, is an important consideration in favour of the granting of
bail: see, for example,
R v Mthembu
1961
(3) SA 468
(D) at 471A-D;
S v Anderson
1991 (1) SACR 525
(C) at 527e-g;
S
v Hudson
1996 (1) SA 431
(W) at 434b-d;
S
v De Villiers en ‘n ander
1999 (1) SACR
297
(O) at 310c;
S v Rawat
1999 (2) SACR 398
(W) at 401f-g and
S
v Mabapa
2003 (2) SACR 579
(T) at 588 para
17.
[6] It is important to note that the majority of cases
mentioned in the preceding paragraph were decided before the advent
of the
new bail dispensation ushered in by Act 85 of 1997 and Act 34
of 1998
1
,
the constitutionality of which is now settled.
S
v Dlamini
;
S v Dladla
and others
;
S v
Joubert
;
S v
Schietekat
1999 (2) SACR 51 (CC). As a
consequence of this legislation, the approach to bail pending appeal
in respect of certain serious
offences has become less lenient and
less liberty orientated in the last decade. Hiemstra
Suid-Afrikaanse
Strafproses
6 ed (2002) by J Kriegler and A
Kruger, p 150.
[7] The prospects of success do not in itself amount to
exceptional circumstances as envisaged by the Act ─ the court
must consider
all relevant factors and determine whether individually
or cumulatively they constitute exceptional circumstances which would
justify
his release.
S v Bruintjies
,
supra. In evaluating the prospects of success it is not the function
of this court to analyse the evidence in the court
a
quo
in great detail. If the evidence is
extensively analysed it would become a dress rehearsal for the appeal
to follow:
cf
S v
Viljoen
2002 (2) SACR 550
(SCA) at 561g-i.
Findings made at this stage might also create an untenable situation
for the court hearing the appeal on the merits.
[8] As regards the merits, the appellant stated the
following in his affidavit:
‘
As
already pointed out, legal argument will be addressed on this issue,
I have an arguable case and I am informed by my legal
representatives,
that I have reasonable prospects of success on
appeal in the sense that my conviction on a murder charge will be
altered on appeal
to being an accessory after the fact. I am informed
that there is a reasonable possibility that the charge against my
co-accused,
and on this aspect argument will be addressed, will be
changed to one of guilty to culpable homicide, in which case I will
only be
an accessory after the fact to the crime of culpable
homicide.’
[9] Mr
Engelbrecht
,
counsel for the appellant, mentioned the possibility that the appeal
could succeed because of alleged irregularities but conceded
that in
such event a trial
de novo
would
probably be ordered, in which case the appellant will again be
arraigned on the Schedule 6 offence and will most probably be
rearrested. In such a case the provisions of s 60(11)(a) of Act 51 of
1977 will be applicable. Counsel did not pursue this argument
nor was
it relied on in the appellant’s affidavit.
[10] The appellant’s version was that on the day
in question, he returned to the farm at 22h30 and found the deceased
already
dead. He, together with the then accused 1 and Robert Mnisi,
conveyed the deceased’s body to the Mokwalo White Lion Camp in
his utility vehicle and he, together with accused 1 and Robert Mnisi,
threw the body over the fence into the lion camp. According
to the
State’s evidence, which was accepted by the court
a
quo
,
the deceased was
still alive when this happened. The appellant denies that the
deceased was alive at the time he was fed to the lions.
On his
version the dead body of the deceased was thrown into the lions’
den to prevent the authorities from discovering the
commission of a
crime of culpable homicide by his co-accused. On his own story thus
the appellant has committed a callous and heinous
crime. His counsel
conceded that this amounted to an admission that he was guilty of
being an accessory after the fact to culpable
homicide and that the
average sentence for this crime was approximately five years.
According to the Assistant Registrar of this
court, the matter will
be enrolled for the third term of 2007. If regard is had to the fact
that the appellant was sentenced on 13 September 2005
he
will have served two years of his sentence when the appeal is dealt
with during August/September 2007.
[11] It is therefore clear on the probabilities that the
appellant has no prospect of avoiding a custodial sentence for a
longer period
than the period he will have served when judgment is
given in his appeal. Counsel for the appellant submitted that there
is a reasonable
possibility that the sentence imposed will be in
terms of
s 276(1)(i)
of the
Criminal Procedure Act, although
he
conceded that he cannot submit that this was a probability.
[12] As far as the appellant’s personal
circumstances are concerned, they are commonplace and not out of the
ordinary ─
none of these factors constitutes exceptional
circumstances. In my opinion an application of the test laid down in
S v Bruintjies
, supra,
leads inevitably to the conclusion that the appellant has not
discharged the onus put upon him by
s 60(11).
[13] It follows from the aforegoing that the court
a
quo
correctly dismissed his application for
bail pending the appeal.
[14] The following order is made:
The appeal is dismissed.
________________________
S P B HANCKE
ACTING JUDGE
OF APPEAL
CONCUR:
FARLAM JA
MUSI AJA
1
In
not one of those decided after those acts were passed was
s 60(11)
applicable.